Summerland v. Exelon Generation Co.

Decision Date21 April 2020
Docket Number19 C 1333
Citation455 F.Supp.3d 646
Parties Betty J. SUMMERLAND, Plaintiff, v. EXELON GENERATION COMPANY, Barbara Pohlman, and Triangle Occupational Medicine, P.A., Defendants.
CourtU.S. District Court — Northern District of Illinois

Edward Arthur Voci, Attorney at Law, River Forest, IL, for Plaintiff.

Jose Jorge Behar, Exelon Business Services Company, Chicago, IL, for Defendant Exelon Generation Co.

Steven L. Gillman, Jennifer Joy Froehlich, Holland & Knight LLP, Chicago, IL, for Defendants Barbara Pohlman, Triangle Occupational Medicine, P.A.


Gary Feinerman, United States District Judge

Betty Summerland sued her employer, Exelon Generation Company, and two of its contractors—Triangle Occupational Medicine and Betty Pohlman, Triangle's principal officer and owner—alleging violations of the First and Fifth Amendments, the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. , Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. , and 42 U.S.C. § 1985(3). Doc. 19. Defendants move under Civil Rule 12(b)(6) to dismiss the operative complaint. Docs. 43, 46. The motion is granted in part and denied in part.


In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC , 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Summerland's brief opposing dismissal, so long as those additional facts "are consistent with the pleadings." Phillips v. Prudential Ins. Co. of Am. , 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted). The facts are set forth as favorably to Summerland as those materials allow. See Pierce v. Zoetis, Inc. , 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United States , 881 F.3d 529, 531 (7th Cir. 2018).

A. Exelon and Summerland

Exelon, an energy company, has nuclear power production facilities in Braceville and LaSalle, Illinois. Doc. 19 at ¶¶ 4, 7. Summerland began work at the LaSalle facility in August 2011 and was promoted to the Braceville facility in 2013. Id. at ¶ 7. She is currently employed at Braceville as an Office Service Specialist. Ibid.

Summerland suffers from several mental/emotional health conditions, including adjustment, anxiety, and depression disorders. Id. at ¶ 8. Those conditions sometimes prevent her from working, driving, or otherwise leaving her home, and they occasionally manifest in panic attacks that render her dysfunctional. Ibid. After Exelon placed her on medical leave in June 2017, Summerland began treatment with a professionally licensed health care provider. Id. at ¶¶ 9, 11-12.

Summerland returned to work in August 2017. Id. at ¶ 11. She responsibly manages her treatment and, as a result, has maintained a discipline-free work record. Id. at ¶ 10. Her work performance evaluations are positive, marred only by non-substantive criticism from supervisors who are hostile to her disability. Ibid.

B. Summerland's Work Schedule

For five years, Summerland's shift was from 6:00 a.m. to 2:30 p.m., which allowed her to attend the last time slot offered by her therapist in Morris, Illinois. Id. at ¶ 13. On November 16, 2017, Exelon moved Summerland's shift to 7:00 a.m. to 3:30 p.m. Id. at ¶ 14. Because it took Summerland forty minutes to leave her work desk and drive to her therapy sessions, the schedule change prevented her from "timely driving to and attending her [therapist's] last therapy time-slot" at 4:00 p.m. Id. at ¶ 14; Doc. 60 at ¶ 4. The therapist sometimes allowed Summerland to begin at 4:30 p.m. Doc. 19 at ¶ 14. Doing so, however, was contrary to the therapist's operating procedures, and the therapist was unlikely to make this accommodation in the future. Ibid.

After her work schedule was changed, Summerland tried to negotiate with Exelon for a schedule that would allow her to attend therapy at 4:00 p.m., but Exelon refused. Id. at ¶ 15. The refusal triggered a panic attack, which prevented Summerland from working and required her to take a vacation day to seek therapy. Ibid.

In September 2019, Exelon changed Summerland's shift back to the original 6:00 a.m. to 2:30 p.m. schedule. Doc. 60 at ¶ 8. Summerland now can attend 4:00 p.m. sessions with her therapist. Ibid.

C. Summerland's Use of FMLA Leave and the Last Chance Agreement

On November 16, 2017, Summerland submitted a request for FMLA medical leave. Doc. 19 at ¶ 16. Exelon approved the request four days later. Id. at ¶ 17. On November 30, Summerland "called-in" another FMLA leave request. Id. at ¶ 18. When she did so, Pohlman—whom the complaint appears to allege was Exelon's site nurse—told her that her " ‘badge was being pulled’ " and that she would be referred to Exelon's Employee Assistance Program ("EAP"). Id. at ¶¶ 18-19.

On December 19 and 20, 2017, while she was on FMLA leave, Exelon's Medical Review Officer ("MRO"), an EAP staffer, and Pohlman informed Summerland that she was on " ‘a last chance agreement.’ " Id. at ¶ 19. Specifically, Pohlman and the EAP staffer told Summerland that if she again requested FMLA or sick leave due to her mental health conditions, Exelon would permanently revoke her work site access; the MRO added that she was untrustworthy and warned that she " ‘did not work at Walmart.’ " Ibid. Exelon did not comply with Summerland's several requests for a copy of the last chance agreement. Id. at ¶ 25.

Summerland could not access or work at the Exelon worksite from the time her badge was pulled on November 30, 2017 until it was returned on January 2, 2018 upon her therapist's determination that she was "fit for duty." Id. at ¶ 18. Permanently pulling an employee's badge is tantamount to termination. Id. at ¶ 20. Due to the restrictions imposed by the last chance agreement, Summerland has attempted to obtain therapy without requesting FMLA leave, which aggravated her mental health conditions and prevented her from obtaining therapy when she needed it. Id. at ¶ 23.

D. Subsequent Events

On May 15, 2018, some four months after Summerland returned to work, Exelon threatened her with revocation of her work site access because she did not attend a scheduled therapy session. Id. at ¶ 21. Summerland had rescheduled the session due to a conflicting medical appointment for her leg. Ibid.

On August 17, 2018, an Exelon maintenance supervisor, who was aware of Summerland's last chance agreement, told her that Exelon knew that she had been the only witness to alleged Title VII violations in the maintenance department. Id. at ¶ 24. The supervisor told Summerland that he or she would " ‘hate to see anything happen to [Summerland].’ " Ibid. Summerland interpreted this comment as a threat. Ibid.

On November 5, 2018, Summerland filed a charge against Exelon with the Equal Employment Opportunity Commission ("EEOC"), claiming that she was "discriminated against because of [her] disability, and in retaliation for engaging in protected activity, in violation of the [ADA]." Doc. 19-2 at 2. The EEOC issued a right-to-sue letter weeks later, id. at 1, after which Summerland timely filed this suit, Doc. 1.

I. Preclusion of Judicial Review

Defendants contend that Department of the Navy v. Egan , 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), and 10 C.F.R. 26.189(d) preclude the court's consideration of Summerland's claims. Doc. 48 at 12-17.

A. Department of the Navy v. Egan

Egan concerned an employment-related dispute at the Trident Naval Refit Facility, which maintains and repairs Trident submarines. 484 U.S. at 520, 108 S.Ct. 818. The Trident is a nuclear-powered and nuclear-armed vessel that plays a "crucial part in our Nation's defense system." Ibid. Given the nature of the facility's work, employment there required security screening. Ibid. The Navy rejected Egan's security clearance after learning that he had failed to disclose certain criminal convictions. Id. at 521, 108 S.Ct. 818. Egan sought review from the Merit Systems Protection Board. Id. at 522-23, 108 S.Ct. 818. The "narrow question presented" to the Supreme Court was "whether the [Board] ha[d] authority by statute to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action." Id. at 520, 108 S.Ct. 818.

The Court held that the Board lacked that authority. Id. at 526-30, 108 S.Ct. 818. The Court grounded its decision in Article II, reasoning: "[The President's] authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from [Article II's] investment of power in the President and exists quite apart from any explicit congressional grant." Id. at 527, 108 S.Ct. 818. Security clearance determinations, the Court explained, require a "[p]redictive judgment" about "whether, under compulsion of circumstances or for other reasons, [an individual] might compromise sensitive information." Id. at 528-29, 108 S.Ct. 818. Consequently, the Court held, an "outside nonexpert body" like the Board lacked the authority to "review the substance" of an Executive Branch security clearance decision. Id. at 529, 108 S.Ct. 818.

Invoking Egan , Defendants argue that "to the extent [Summerland] contends [Exelon] retaliated against her by ‘pulling her badge,’ denying her unescorted access privileges, or issuing her a ‘last chance agreement’ regarding her mental health conditions, each of...

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